03.07.22

The Bail Act 2013 (NSW)


Bail is a legal term familiar to most people due to crime-related television shows and movies. Most people understand that bail involves the temporary release of an accused person from police custody, under a set of conditions which may be financial or legal in nature. The concept of bail has been part of common law for nearly a thousand years since the provisions of the Statute of Westminster in 1275, and fortunately, the right to apply for bail remains a fundamental right held by each and every citizen in Australia today. 

What is Bail?

Bail is the granting of temporary and conditional liberty to a person charged with a criminal offence by police. Usually these conditions involve meeting your next court date, but they can also involve much more stringent conditions, such as residing at a specific address, regular reporting to a police station, surrender of passport and/or forfeiture of cash. There are many more conditions of bail that can be imposed, but these are all circumstantial and will depend on the particular case.

Bail depends on the legal presumption of the accused’s right to be considered innocent until proven guilty in a court of law. 

What is The Bail Act 2013 NSW?

The Bail Act 2013 involves a more streamlined bail system which is instead based entirely  on managing risk to the community. Alleged offenders are now expected to show cause for why they should receive bail and bail officers must weigh up whether they believe the accused is a danger to the community. The bail application was also renamed to release application, although bail is still a commonly used term.

The renewed Bail Act 2013 was introduced to improve upon its dense, complex and often convoluted predecessor. These changes have done away with presumption for bail legislation, which held favourable, unfavourable and “neutral” presumptions towards bail depending on the offence involved. While this sounds good, it actually created unequal and unfair outcomes in court. 

Who Grants Bail?

Bail can be granted by the police at the police station upon arrest and charging, or by Magistrate or Judge in the courts. Police are not required to grant you bail, but you do have the right to go before a court and request bail expediently if it is denied by police. The Bail Act 2013 requires a bail application to be dealt with “as soon as reasonably practicable.”

How Will a Court Determine Whether or Not You Are Granted Bail?

The Bail Act 2013 abolished antiquated presumptions in favour or against bail which were confusing and complex, and replaced them with a new single criterion of “unacceptable risk”, which relates to appearance in court and protection of the community. Section 20 of the Bail Act 2013, states that bail may only be refused if the court is satisfied that there is an unacceptable risk that cannot be sufficiently mitigated by the imposing bail conditions.

The purpose of bail is to ensure that the defendant appears at their court dates and should not be used to punish the defendant for the allegations. Section 3(2) of the Bail Act 2013 affirms the presumption of innocence and the general right to be at liberty. However when bail is refused, it is usually for the purposes of protecting the community, the victim and reducing the likelihood of further offending.

What is an unacceptable risk?

In most cases, particularly when the offence is not serious, the court will grant bail unless it decides that there is an “unacceptable risk” that an accused person, if released from custody, will

  • fail to appear at future court proceedings,
  • commit a serious offence if released,
  • endanger the safety of victims or the community, or
  • interfere with witnesses or evidence.

If the court deems the accused to pose an unacceptable risk to the community or to bail conditions, bail likely will be refused.

The criminal justice system takes bail very seriously, and for good reason. In 2015, 17-year-old Masa Vukotic was murdered in a reserve in Doncaster, Melbourne, by a man with a history of violence against women. The murderer, Sean Price, was out on bail despite being charged with violent crimes and threatening behaviour. In 2017, Teresa Bradford was murdered by her husband, who was also out on bail following an assault on her. Bradford was not even aware that he was back on the streets. These terrible stories emphasise why bail is important, what an “unacceptable risk” to the community or an individual is, and what can happen if this isn’t adhered to appropriately.

What specific matters can the court consider in assessing unacceptable risk?

There are many factors that the court takes into account when assessing unacceptable risk and the validity of a bail application. Pursuant to Section 17(3) of the Bail Act 2013, the following matters are considered by the court in determining unacceptable risks:

  • The accused person’s background, including criminal history, circumstances and community ties. This takes into account whether whether they have::
  • Nature and seriousness of the offence
  • Strength of the prosecution’s case, likelihood of a custodial sentence being imposed if the accused is convicted of the offence and duration of time they are likely to spend in custody if bail is refused
  • if the accused has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
  • Special vulnerability or needs, including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment
  • Need of liberty to prepare for appearance in court, obtain legal advice or another lawful reason. to 

Can I Apply for Bail More Than Once?

If you or someone you know have been denied bail, but believe you are eligible, there are certain circumstances in which you can reapply, either in the same court, a higher court, or an appellate court. 

Same court

If bail has been refused, the accused may only lodge a new bail application with the same court under the following conditions:

  • The accused did not have a lawyer when the application was refused but now has legal representation. 
  • Bail was refused for an accused under the age of 18.
  • The new application is based on new information not previously known to the court.
  • Relevant circumstances have changed since the last bail application.

Higher courts

If bail is refused at Local or District Court, the accused is also apple to lodge a bail application with the Supreme Court and the Court of Criminal Appeal.

Bail Conditions NSW

If bail is granted, it is often done with conditions and restrictions. Section 24 of the Bail Act 2013 sets out the rules for bail conditions which are imposed to mitigate unacceptable risk and must not be more onerous than necessary to mitigate the risk. Examples of bail conditions include:

  • Reporting to the police station on a basis the court sees fit
  • Surrendering all passports
  • Not associating with the co-defendants
  • Not contacting or approaching prosecution witnesses
  • Forfeiting a sum of money to the court
  • Curfew conditions

Failing to Appear in Court – What Happens if I Breach Bail?

If you fail to appear in court or breach any of your bail conditions, there are many courses of action the police can take. 

  • Take no action 
  • issue a warning
  •  issue a notice requiring you to come back to court
  • issue a court attendance notice 

Firstly, breaching bail conditions is an offence, and the police can arrest you which would result in you remaining in custody until the courts can process you. This would lead to either a new set of bail conditions or a refusal of bail and being held in custody.

  • The seriousness or triviality of the breach
  • Reasonable excuse
  • Personal attributes and circumstances
  • Alternative course of action

Duration of Bail

Duration of bail depends on the decision of the authorities. Bail ceases to have effect only if it is revoked by the police or the courts, or the proceedings for the offence conclude. In other words: bail is concluded after conviction or sentence. Bail authorities may also grant bail for a specified period of time. At this time, bail ceases to have effect. 

Under the old bail act, bail was granted from one court appearance to the next court appearance, when bail may be continued. Under the Bail Act 2013, once bail is granted it continues until the matter is concluded. 

What To Do If Someone Has Been Arrested

Arrests can be a frightening experience, but it is essential to remember your rights. It is essential that you do not incriminate yourself, and that you seek legal advice as soon as possible. Police have the authority to grant bail to people who they deem not to be a risk to society or likely to breach bail. If police refuse bail, you have the right to contact a lawyer who can organise bail for you. An accused person has the right to go before a court within 48 hours of being charged, and at this point you will know for sure whether bail will be granted or refused. 

If you or someone you know have been arrested by the police and charged with a crime, contact LY Lawyers for expert legal consultation and representation by experienced lawyers who are adept at bail applications. Call our 24/7 hotline at 1300 595 299 or book your free consultation online.